Insurance Law Hawaii

Equitable Subrogation Applied to Resolve Other Insurance Provisions

   One insurer could not escape equitable subrogation on the basis of its "other insurance" provision on the theory that the second insurer was responsible for all of the co-insured's defense costs. Underwriters of Interest v. ProBuilders Spec. Ins. Co., 2015 Cal. Ct. App. LEXIS 936 (Cal. Ct. App. Oct. 23, 2015).

   Underwriters issued a CGL policy to Pacific Trades, a contractor, that was in effect between October 23, 2001 and October 23, 2003. ProBuilders also issued policies to Pacific Trades, with effective dates between December 9, 2002 and December 9, 2004. The two sets of policies provided for indemnification against liability for many of the same risks. 

   ProBuilders's policies contained an "other insurance" clause that stated ProBuilders had the right and duty to defend "provided that no other insurance affording a defense against such a suit is available to you." Underwriters' policy also included other insurance provisions stating that  Underwriters would also be excluded from any duty to defend Pacific Trades.

   Pacific Trades was sued for damages to multiple separate single family homes caused by construction defects allegedly due to its negligent acts or omissions. ProBuilders refused to defend because Pacific Trades was being defended by Underwriters. Underwriters demanded that ProBuilders participate in funding the defense, but ProBuilders never did so.

   After the underlying suit was settled, Underwriters sued ProBuilders seeking equitable contribution for some of the defense costs paid by Underwriters. The trial court granted summary judgment to ProBuilders, concluding that the "other insurance" clause in its policies obligated ProBuilders to defend only if no other insurance was available to Pacific Trades.

   On appeal, the court noted that ProBuilders sought to take advantage of an "escape clause," under which it could escape providing a defense if the insured had other coverage available to provide a defense. Escape clauses were discouraged, however, and generally not given effect in actions where the insurance company who paid the liability was seeking equitable contribution from the carrier who was seeking to avoid the risk it was paid to cover.

   The court adhered to the modern trend of requiring equitable contribution on a pro rata basis from all primary insurers regardless of the type of "other insurance" clause in their policies. ProBuilders provided coverage for a different period of time from Underwriters's policies. The allegations asserted against the common insured included some claims for which ProBuilders potentially provided the only primary policy available to Pacific Trades. Because giving effect to ProBuilders "other insurance" provision would result in imposing on Underwriters the burden of shouldering that portion of the defense costs attributable to claims arising from a time when ProBuilders was the only liability insurer coverage Pacific Trades, the escape clause would be disregarded and Underwriters could seek equitable contribution from ProBuilders.

   Therefore, the trial court's judgment was reversed.

    In a slightly different twist, the Hawaii Supreme Court determined that where two primary insurers have competing "other insurance" provisions, each must defend their insured. See Nautilus Ins. Co. v. Lexington Ins. Co., 132 Haw. 283, 321 P.3d 634 (2014). See prior post here.

Policy Sublimit Does Not Apply to Business Interruption Loss

   Refusing to give the sublimit in a flood policy an expansive reading, the court found that the sublimit did not apply to business interruption loss. Federal-Mogul Corp. v. Ins. Co. of Pa., 2015 U.S. Dist. LEXIS 137394 (E.D. Mich. Oct. 8, 2015).

   The insured's facility in Thailand was damaged by flood. The parties stipulated that the insured suffered a loss of $64,500,000, which included $39,406,467 in property damage and $25,093,533 in time element loss (i.e., economic loss due to an inability to operate normally). The insurer paid $30 million, stating that the High Hazard flood zone provision in the policy limited the amount owed under the policy.  

    The insured argued the High Hazard sublimit applied only to physical loss or damage caused by the flood, and not to time element loss. Therefore, the insured was entitled to judgment on its time element loss claim for $29,093,533. The insurer argued it was entitled to judgment as a matter of law because the High Hazard sublimit applied to all loss caused by flood, including time element loss.

    Both property damage and time element loss caused by flood were covered by the policy. The "Flood Aggregate Limit of Liability" provided a general $200 million limit per policy year. This $200 million limit was subject to four sublimit amounts, including the High Hazard Zone sublimit of $30 million.

    Further, the Flood Aggregate Limit of Liability set forth a $200 million limit "for all locations combined in any one policy year, except . . . Flood for High Hazard Zones" for which there was the $30 million annual aggregate limit. The provision did not specify the types of loss included. Specifically, "Flood for High Hazard Zones" made no mention of time element loss.

   The flood coverage provision defined the term "flood" as including only physical loss or damage. The policy also insured time element loss such as gross earnings "directly resulting from direct physical loss or damage of the type insured by this policy." Time element loss directly resulting from flood was covered by this section. But there was no indication that sublimits applying to "physical loss or damage" caused by flood also applied to time element loss "directly resulting from" such physical loss or damage. 

   Looking at the sublimits in the policy, the sublimit immediately following the High Hazard sublimit expressly included two time element loss extensions: contingent time element and service interruption time element. These provisions demonstrated that the parties understood how to set limits of liability and sublimits that combined or included time element loss. The inclusion of certain types of time element loss in a flood-related sublimit supported a finding that the High Hazard sublimit did not implicitly include time element loss. 

   Therefore, the court found the High Hazard sublimit applied only to physical loss or damage caused by flood and did not apply to time element loss. The insured's motion for partial summary judgment on the time element loss of $25,093,533 was granted. 

"Your Work" Exclusion Bars Coverage for Contractor's Faulty Workmanship

   The West Virginia Supreme Court of Appeals found there was no coverage for the contractor's faulty workmanship in constructing a home. State of W. Virginia ex rel. Nationwide Mut. Ins. Co. v. The Honorable Ronald E. Wilson, 2015 W. Va. LEXIS 963 (W. Va. Oct. 7, 2015). 

   In July 2009, Fred Hlad contracted to build a home for the Nelsons and complete construction by November 2009. The Nelsons sued when the house was not timely completed. Nationwide defended under a reservation of rights, but then filed a declaratory judgment action.The circuit court denied Nationwide's request for declaratory relief, determining that the defective workmanship was an "occurrence." Nationwide petitioned the Supreme Court for a writ of prohibition.

   On appeal, Nationwide argued that eight of the nine counts in the Nelsons' complaint were not caused by his defective workmanship. These allegations included breach of contract claims and intentional torts. Nationwide submitted it was not obligated to indemnify Hlad for damages that may be recovered on those counts. The court agreed that Nationwide's duty to indemnify was limited only to those claims that triggered coverage. Accordingly, Nationwide had no duty to indemnify for the eight counts alleging breach of contract and intentional torts.

   The West Virginia court had previously held that defective workmanship causing property damage was an occurrence under a CGL policy. Here, the claim for defective workmanship included damages for have to replace various doors, windows, wall and lights, etc. The court agreed these damages were caused by an occurrence. 

   The court, however, considered the "your work" exclusion, which provided that coverage was excluded for "'property damage' to 'your work' arising out of it or any part of it . . . ." An exception provided that the exclusion did not apply if the damage work or the work out of which the damage arose was performed on the insured's behalf by a subcontractor.

   Here, there was no indication that the faulty work had been performed by subcontractors. The complaint did not allege that a subcontractor performed any of the allegedly defective work. Therefore, the damages sought by the Nelsons were exclusively for Hlad's defective workmanship, not his subcontractors. Therefore, the "your work" exclusion applied to bar indemnity coverage.

Question of Parties' Intent Prevents Summary Judgment for Insurer

   The insurer's and insured's intent as to which entities were to be insured prevented the insurer's motion for summary judgment. Chaus v. State Farm Fire & Cas. Co., 2015 U.S. Dist. LEXIS 136311 (E.D. La. Oct. 5, 2015). 

   Water damage from a broken pipe occurred at the insured's building. Blaze Chaus LLC owned the building.The building was occupied by two entities which provided health care services: Dr. Kelly G. Burkenstock, M.D. and Azure Spa, Inc. Dr. Burkenstock was the sole owner of all three entities.

   The application for commercial insurance was submitted by "Dr. Kelly G. Burkenstock, d/b/a/ Blaze Chaus LLC." The application requested a "Physicians and Surgeons Endorsement" and reflected that the business activities of the applicant as "Internal Medicine Doctor."

   As  a result of the application, State Farm issued a Medical Office Policy in 2006, which was annually renewed through 2013. The only entity identified as a named insured was Blaze Chaus. 

   The water damaged the insured building and its insured contents. State Farm paid Blaze some amounts for structural damage, but not for business personal property or business income losses. Blaze Chaus LLC owned the insured building, but the contents were owned by Dr. Kelly G. Burkenstock, M.D. and Azure Spa, Inc. The only alleged business income losses were incurred by those entities and not Blaze.

   Blaze sued and State Farm moved for summary judgment. The court found as a matter of law that the policy was not ambiguous as to the identity of the named insured. The language of the policy designating Blaze Chaus LLC as the named insured was clear and explicit, and subject to no other interpretation. Therefore, only Blaze could seek to enforce the policy as it was currently written.

   Blaze argued, however, that there was a genuine issue of material fact regarding the intent of the parties as to the named insured(s). The court agreed. The information stated in the application supported a finding that Dr. Burkenstock and State Farm intended that the insurance policy cover Dr. Burkenstock's medical practice as well as the separate entity constituting her practice. There was a genuine issue of material fact regarding the intent of the parties to the insurance contract which could support reformation of the policy and the addition of another named insured.

Insured's Claim for Replacement Cost Denied

    The Illinois Appellate Court affirmed the trial court's ruling that the insured was only entitled to the actual cost value of his loss, not the replacement cost. Lytle v. Country Mutual Ins. Co., 2015 Ill. App. LEXIS 756 (Sept. 30, 2015).

   The insured's home was built around 1903. On June 21, 2011, the insured discovered damage to his home because of a severe storm. He made a claim with his insurer, Country Mutual. 

   The policy contained a depreciation holdback provision. The provision said the insurer would not pay more than the actual cash value until the actual repair or replacement was complete. If the insured elected to accept actual cash value, he would have one year from the date of the loss to repair or replace the damaged property and request the difference between the actual cash value and the replacement cost.

   Country Mutual issued to the insured an actual cash value payment of $42,911.84 on August 31, 2011. Country Mutual sent a letter on October 21, 2011, advising the insured that his claim remained open, and Country Mutual was waiting for the work to be completed. A second letter was sent on January 21, 2012, six months before the expiration of the one year period for the repairs to be made.  

   On April 24, 2012, the insured's adjuster notified Country Mutual that the repairs had come to a standstill because the city required necessary upgrades under its building code. The adjuster suggested a meeting at the construction site with city officials, but Country Mutual never agreed to such a meeting. 

    When the one year period expired, Country Mutual denied the insured's request for additional payment of the depreciation holdback. The insured filed suit. The trial court granted summary judgment to Country Mutual. The court found that the insured had negotiated a settlement of the actual cash value payment, failed to timely complete repairs, and did not incur any building code upgraded costs. The insured appealed. 

   The appellate court affirmed. There was no ambiguity in the policy language. The trial court correctly interpreted the clear language of the policy as providing for replacement cost coverage only if actual repairs were completed. It was also undisputed that the insured was paid the actual cost value of the damaged property and had not repaired the property. Accordingly, the insured was not entitled to reimbursement for the depreciation holdback because he did not incur that pecuniary loss. 

Illegal Recording is Not Publication Under Liability Policy

   The Seventh Circuit found that the insured's illegal recording of conversations with customers did not constitute a publication under the insured's liability policy. Defender Security Co. v. First Mercury Ins. Co., 2015 U.S. App. LEXIS 17116 (7th Cir. Sept. 29, 2015).

   A class action complaint was filed in California, alleging that Defender Security Company, a provider of home security systems, illegally recorded conversations in which customers provided personal information, including full names, addresses, dates of birth, and social security numbers. The complaint also alleged that Defender used "call recording technology" that allowed it to record conversations with customers and then store the recordings for various business purposes. These actions violated the California Penal Code, which prohibited the recording of confidential telephone communications without the consent of all parties. 

   Defender tendered to its liability carrier, First Mercury. The policy promised to pay amounts that the insured became legally obligated to pay as damages because of "personal injury" or "advertising injury." The policy defined both "advertising injuries" and "personal injuries" as those "arising out of . . . oral or written publication of material that violates a person's right of privacy."

   First Mercury denied coverage because there was no publication. Defender sued and First Mercury filed a motion to dismiss. The district court granted First Mercury's motion to dismiss.

    On appeal, the Seventh Circuit considered the proper interpretation of "publication." Defender argued that publication was achieved when the material was transmitted to Defender's recording device. 

   The Seventh Circuit disagreed. The common dictionary definitions of "publication" described the release of information by the party holding it. There were no allegations that any third party received the information. Therefore, the Seventh Circuit affirmed the dismissal of Defender's complaint.

Nevada Provides Independant Counsel When Conflict Arises Between Insurer and Insured

   The Nevada Supreme Court, responding to certified questions, determined that an insurer must provide independent counsel for its insured when a conflict of interest arises between the insurer and insured. State Farm Mut. Auto. Ins. Co. v. Hansen, 2015 Nev. LEXIS 86 (Nev. Sept. 24, 2015). 

   The insured struck the vehicle of another driver, Hansen. Hansen sued the insured alleging both negligence and various intentional torts. State Farm agreed to defend under a reservation of rights. The reservation of rights letter reserved the right to deny coverage for liabiltiy resulting from intentional acts and punitive damages.  

   The insured admitted to negligently striking the other vehicle, and summary judgment was granted in Hansen's favor on the negligence claim. A settlement was reached and the insured assigned its rights against State Farm to Hansen. Hansen then sued State Farm in federal court, alleging that State Farm had breached its contract, breached the implied covenant of good faith and fair dealing, and violated the Nevada Unfair Claims Practices Act.

   The federal district court certified questions to the Nevada Supreme Court. 

    The Nevada Supreme Court first considered the right to insurer-provided independent counsel. It noted that courts rejecting the Cumis rule had not recognized the existence of a conflict of interest in such cases. The court cited the Hawaii Supreme Court's decision in Finley v. Home Ins. Co., 975 P.2d 1145 (Haw. 1998), as one court which reasoned that the sole client is the insured, and therefore, counsel only owes a duty to the insured.

    Nevada, however, was a dual-representation state where the insurer-appointed counsel represented both the insurer and the insured. Therefore, counsel could not represent both the insurer and the insured when their interests conflict and no special exception applies. Where the clients' interest conflicted, the rules of professional conduct prevented the same lawyer from representing both clients. Therefore, Nevada law required the insurer to satisfy its contractual duty to provide representation by permitting the insured to select independent counsel and by paying the reasonable costs of such counsel. 

   The second certified question asked whether a reservation of rights created a per se conflict of interest. The Nevada court followed the California approach and held that a reservation of rights did not create a per se conflict. Courts would have to inquire, on a case-by-case basis, whether there was an actual conflict of interest. 

Unfortunate Event Test Leads to Three Occurrences

   The Second Circuit affirmed the finding of three occurrences in a highway accident after applying the unfortunate event test. Nat'l Liability & Fire Ins. Co. v. Itzkowitz, 2015 U.S. App. LEXIS 16387 (2nd Cir. Sept. 15, 2015).

   A dump box attached to a dump truck struck and damaged an overpass. The dump box then separated from the truck and landed in the right lane of the highway. Some thirty seconds to five minutes later, the Itzkowitz vehicle struck the detached dump box. Then, at some point between a few seconds and twenty minutes later, the Hershkowitz (second) vehicle struck the dump box. 

   The insurer for the dump truck owner, National, argued there was one accident, or at most two separate accidents, under the policy. The district court found there were three occurrences and National appealed.

   The Second Circuit noted that under New York law, absent policy language indicating an intent to aggregate separate incidents into a single occurrence, the unfortunate event test applied to determine how many occurrences there were. The test involved a two-part inquiry. First, the operative incident giving rise to the liability was identified. Second, the court considered whether there was a close temporal and spatial relationship between the incidents, and whether the incidents could be viewed as part of the same causal continuum, without intervening factors.

   National argued that the policy language providing that "all 'bodily injury' and 'property damage' . . . resulting from continuous or repeated exposure to substantially the same conditions will be considered as resulting from one 'accident'" indicated an intent to aggregate separate accidents into a single occurrence. But both the New York Court of Appeals and the Second Circuit had applied the unfortunate event test when considering the same policy language. 

   Therefore, applying the unfortunate event test, the court first determined that each collision was a separate operative incident. Further, although the incidents occurred close in time, nothing suggested that the narrow time span between each incident played a role in causing any of the other incidents.

   The spatial proximity of the events presented a closer question. The dump box striking the overpass occurred at a different location from where the Itzkowitz vehicle struck the dump box. The second and third incidents, however, were spatially proximate. The two collisions with the dump box occurred at virtually identical spots and involved the same dump box. This was not the end of the analysis, however. The unfortunate event test did not dictate that separate incidents were part of the same accident if they met any one of the three criteria - spatial proximity, temporal proximity, or occurrence in a causal continuum. Rather, the test reflected a "common sense" balancing of the three elements. 

   Therefore, the court looked to whether there was an "unbroken" continuum between the events. The dump box striking the overpass was not responsible for the second and third incidents. For example, the first incident did not weaken the overpass's structure in a way that caused further injury. Rather, the dump box was released and came to a stop on the highway. Then, after thirty seconds passed, the Itzkowitz vehicle struck the dump box. This was distinct from the dump box striking the overpass. Finally, the Hershkowitz vehicle struck the dump box, and this collision was unrelated to the preceding collision involving the Itzkowitz vehicle.

   Therefore, applying the unfortunate event test, there were three separate accidents under the National policy. 

 

No Coverage For Damage Caused by Chinese Drywall

   The Florida Court of Appeals determined that there was no coverage for damage to the insured's home caused by the installation of Chinese drywall. Peek v. Am. Integrity Ins. Co., 2015 Fla. App. LEXIS 14147 (Fla. Ct. App. Sept. 25, 2015).

   Chinese drywall was installed in the Peek's new home. After moving in, the Peeks reported to American Integrity a sulfur odor caused by the Chinese drywall. The odor caused the Peeks to vacate their home. The Peeks also claimed corrosion and deterioration of copper coils in the air conditioning system were caused by the Chinese drywall. 

   American Integrity denied coverage based upon policy exclusions for latent defects, corrosion, pollutants, and faulty, inadequate or defective constrution materials. The Peeks sued American Integrity. 

   To prevail at trial, the Peeks had to prove that a covered peril at least contributed to the cause of the loss under the concurrent cause rule. The Peeks proved that they suffered a loss within the policy period. The Peeks, however, did not present any expert testimony or other evidence as to the cause of loss. American Integrity's expert, Dr. Ralph Moon, a botanist, opined that the Chinese drywall was emitting destructive gases at the moment they were manufacutred, prior to its installation in the Peeks' home. He therefore concluded that it was a faulty, inadequate, or defective construction material. 

   On cross-examination, the Peeks' counsel tried to prove that Florida's high humidity was a concurrent cause that acted in concert with the sulfur gases to cause the loss to their home. Dr. Moon conceded that humidity could accelerate the emission of the sulfur gases. He qualified this statement, however, by stating that this was based upon an assumption that the Peeks did not use air conditioning in their home during times of high humidity. There was no evidence, however, that the Peeks did not use air conditioning during such periods. Both parties moved for a directed verdict.

   Before the court could rule on the motions, the Florida Court of Appeals issued a decision in Am. Home Assurance Co. v. Sebo,141 So.3d 195 (Fl. Ct. App. 2013). In Sebo, the court determined that in deciding coverage under first party claims, the efficient proximate cause test should be used, not the concurrent causation test. Therefore, if the efficient proximate cause of the loss was a covered peril, the loss was covered; if it was an excluded peril, the loss was not covered. 

   The Peeks did not request to reopen the case to address the new causation doctrine, nor did they move for a mistrial. Therefore, the court entered a directed verdict for American Integrity. The Chinese drywall was the proximate efficient cause for the loss and there were no ensuing losses because all of the losses occurred as a direct and continuous result of the corrosive Chinese drywall. 

   The appellate court affirmed. The Peeks' evidence was insufficient to establish that humidity contributed to the loss. Dr. Moon testified that the Chinese drywall would produce the destructive gases in any climate. The Peeks did not present an expert witness to contradict this testimony. Therefore, the uncontradicted evidence was that humidity was not a peril that caused the loss, nor was it the efficient proximate cause of the loss.

    Nor was there an ensuing loss. The sulfur gases and the corrosion caused by the chemicals released by the sulfur gases eminated from the Chinese drywall. Thus, the losses were not "ensuing." Further, the claimed ensuing losses were excluded by the policy because an excluded cause of loss - defective Chinese drywall - led directly to another set of exclusions - pollution and corrosion.